The Law on Fees for Usage of Public Goods (“Official Gazette of RS”, no. 95/2018, 49/2019, 86/2019 – adjusted Dinar amounts, 156/2020 – adjusted Dinar amounts and 15/2021 – amended adjusted Dinar amounts) regulates the question of all fees for the usage of public goods (natural resources, goods of general interest and goods in general use) in one place. The Law introduces 15 types of fees, starting with the fees for geological research and the use of mineral resources, through fees for the usage of forests, water, and energy, to the electronic communications fee. Since the fee for the usage of radio frequency is particularly interesting from the as aspect of media law, we’ll be exploring this fee further on through this article. However, the stated will also apply in principle to other types of fees.
The main objection to the stated law is related to its penal provisions.
Namely, article 274 paragraph 1 item 1) of the Law provides that a legal entity failing to pay the prescribed fee will be fined between 500.000 and 2.000.000 Dinars for this misdemeanour. In accordance with paragraphs 2, 3 and 4 of the same article, an entrepreneur will be fined between 10.000 and 500.000 Dinars, a natural entity fined between 5.000 and 50.000 Dinars, and the responsible person of the legal entity fined between 10.000 to 100.000 Dinars for the same misdemeanour.
The prescription of such penal provision is primarily unconstitutional and as such unacceptable. The decision also deviates significantly from current regulations governing the question of radio frequency usage.
Namely, in accordance with article 85. of the Law on Electronic Communications (“Official Gazette of RS”, no. 44/2010, 60/2013 – decision of the Constitutional Court, 62/2014 and 95/2018 – other law) radio frequencies can be used based on individual licenses, by general authorisation regime or for special purposes.
Radio frequencies are used by general authorisation regime if such use does not interfere with other users (for example, radio amateurs). Defence and security authorities, as well as emergency services use radio frequencies for special purposes. No fee is charged in either case for the use of radio frequency.
Only users which have been issued an individual license for radio frequency usage are obligated to pay such fee. Media service providers belong to those types of users.
Specifically, article 100 paragraph 2 of the Law on Electronic Communications provides that radio frequencies for distribution and broadcasting of media content are used based on an individual license issued by the Regulatory Agency for Electronic Communications and Postal Services (RATEL) on request from the Regulatory Authority for Electronic Media.
If a legal entity which has been issued an individual licence fails to pay the fee for radio frequency usage, this entity cannot have a fine imposed on them, rather in that case RATEL would make the decision to revoke the assigned radio frequency (article 95 paragraph 1item 3) LEC).
Only in the event that the user of the radio frequency should fail to act in accordance with RATEL’s decision on revocation of radio frequency, misdemeanour proceedings can be initiated against them (article 138 paragraph 1 item 18) LEC), and initiated not for the failure to pay the fee, but for unauthorized use of the radio frequency.
Hence, if a specific media service provider fails to pay the fee for the usage of radio frequency, RATEL will revoke the licence for the usage of radio frequency but is not authorized to also file a misdemeanour charge against that person at the same time.
As we can see, the Law on Electronic Communications already includes an efficient and proportionate legal remedy to sanction fee non-payment, and that is the revocation of the license for the usage of radio frequency. It is for this reason that there is no fear of any entity entering into a situation of using the public good free of charge in the event of irregular fee settlement. The current legal solutions present a guarantee that this will not happen.
However, the Law on Fees for use of Public Goods introduces misdemeanour punishment if the legal entity fails to pay the fee for the usage of radio frequency.
We feel that this solution is not in line with the Constitution of RS. Namely, even though the limitation of the freedom of entrepreneurship for the purpose of protection of natural resources is legitimate in certain situations, in this specific case the implemented legal remedy (fine) is unproportionate to the goal which can be achieved thorough the implementation of remedies which infringe on that freedom to a lesser extent, within the meaning of article 20 of the RS Constitution.
It has already been mentioned that there is an efficient remedy for attaining the same goal, which infringes on human rights and freedoms incomparably less (revocation of licence for the use of public good).
In addition, we feel that financial punishment for non-payment of the fee is not in line with regulations that define the purpose of punishment in misdemeanour law. Specifically, misdemeanour penalty as a sanction for non-payment is unproportionate to the offense and is, as such, unconstitutional and should not exist. What we have here is a monetary obligation which, if found in default, could be enforced, along with calculated statutory default interest.
Therefore, the non-payment of the fee is not a question which should find its place in misdemeanour law, but rather there are other legal remedies that can be utilized for resolving this issue. Penal liability cannot be established, nor anyone punished for their inability to settle a specific fee.
In effect, misdemeanour liability is prescribed when certain obligations are being avoided for the purpose of disrespecting the country’s legal system. An example of such obligations can also be found in the subject law (if the taxpayer fails to submit their return, annual report, Unified Customs Document, etc.).
However, it is unconstitutional and unacceptable to punish citizens and business entities if they are unable to settle a specific fee. In these cases, there are other legal remedies available to the creditor of such fee.
In addition, the act of prescribed misdemeanour is gravely inaccurately defined in the law – “in the event of failure to pay the determined fee”. It is not clear how the non-payment of the fee would be determined, whether the misdemeanour charge is filed on the first day after the due date, what effect do the legal options of granted payment allowances or exemptions have on the question of non-payment, etc.
